STATE v. BRANDEN HOLLOWAY, AC 29051

Judicial District of Stamford-Norwalk at Stamford G.A. 1

 Criminal; Drug Dependency Defense; Prior Misconduct Evidence; Whether Trial Court Improperly Instructed Jury not to Consider Defendant's Drug Dependency Defense; Whether Court Improperly Admitted Prior Misconduct Evidence Regarding Defendant's Alleged use of a Firearm.  On November 28, 2005, members of the Norwalk police department attempted to locate the defendant, who was wanted for violating a condition of his probation.  The officers discovered the defendant walking around his motor vehicle, and after they apprehended him, they found narcotics in his pocket.  As the officers placed the defendant under arrest, his cousin emerged from the vehicle and began to run towards a public housing project while holding a bag.  After the defendant's cousin was captured by the officers, it was discovered that the bag contained a 9 millimeter Tech Nine semiautomatic pistol.  Thereafter, a jury found the defendant guilty of criminal possession of a pistol or revolver, possession of weapons in a motor vehicle without a permit, possession of narcotics with the intent to sell by a non-drug-dependent person and possession of narcotics within 1500 feet of a public housing project.  In this appeal, the defendant argues that the trial court improperly precluded him from advancing his affirmative defense that he was a drug-dependent person by instructing the jury not to consider that defense on the ground that he had failed to submit live testimony from a mental health professional.  He maintains that live testimony was not required and that he had offered other forms of evidence that sufficiently established that he was a drug-dependent person.  He also contends that the court improperly admitted prior misconduct evidence regarding his alleged use of the Tech Nine firearm.  He argues that, notwithstanding the court's conclusion to the contrary, such evidence was not relevant to prove that he was aware that the weapon was in his vehicle at the time of his arrest, but, rather, the evidence merely established that he was aware of the gun's existence and that it was operable.  The defendant further claims that with regard to the two weapons charges, the court improperly failed to instruct the jury on the doctrine of nonexclusive possession, which provides that where two or more people had access to the illegal item in question, there must be something more than the mere fact that the illegal item was found to support the inference that it was in the possession or control of the defendant.  He also contends that the court should have instructed the jury that the state had to prove that his cousin did not have a permit to possess the firearm because the crime of possession of a weapon in a motor vehicle without a permit requires a showing that none of the occupants of the vehicle had a proper permit to carry the weapon.  While the state generally disputes the defendant's claims, it agrees that the trial court should have permitted the jury to consider his drug dependency defense, but it asserts that his request for a reversal of the drug charges is inappropriate and that, instead, a conviction for possession of narcotics with the intent to sell should be entered in lieu of the conviction for possession of narcotics with the intent to sell by a non-drug-dependent person.